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Article 7 No punishment without law

no-one can be found guilty of a crime that was not a crime under the law at the time it was committed – the prohibition on retrospective criminalisation; and

anyone found guilty of a criminal offence cannot have a heavier penalty imposed on him or her than that which was applicable at the time the offence was committed.

Under this right crimes and penalties can only be prescribed by law. Such law must be clear in its definition so that people know what acts or omissions are criminal in nature.

Retrospective offences

It is fundamental to the rule of law that behaviour is only punished if it contravenes a law that predates the offending behaviour. Article 7 provides effective safeguards against arbitrary prosecution, conviction and punishment.

This prohibition does not apply, however, to criminal offences that were offences recognised by international law at the time they were committed. This is intended to capture war crimes, genocide and crimes against humanity etc., which remain punishable in UK courts even if committed before these were specific offences in UK law.

Heavier penalties

There must be certainty around any applicable penalties to be imposed for criminal conduct. What constitutes a ‘penalty’ is to be considered with reference to whether the measure was imposed following a criminal conviction; the classification of the measure; its nature and purpose; how it is made and implemented and its severity. So, for example, the courts have held that obligations to register on sex offenders registers are not ‘penalties’, but retrospective confiscation orders are considered to be penalties.

In relation to sentencing, Article 7 also requires that any favourable changes to sentencing laws or practices since the commission of the offence and delivery of final judgment be applied.

Case study

In 1995 the owner of a company in Estonia was charged with tax evasion which related to alleged forgery and fabrication of documents between 1993 and 1994. The charges were brought under legislation that only came into force in January 1995. Before this date, while the activities were regulated they were only subject to criminal sanction if a person had already been first subjected to administrative sanction for a similar matter. The company owner had not been subjected to administrative sanction previously and therefore under the law in force at the time the conduct took place he could not expect that he would be subject to criminal conviction. The European Court of Human Rights held there had been a breach of Article 7 as the 1995 law had been applied retrospectively.